WARNING The court hearing this matter directs that the following notice should be attached to the file:

This is a case under Part V of the Child, Youth and Family Services Act, 2017, (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87.— (7) Order excluding media representatives or prohibiting publication. — Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order,

( c ) prohibiting the publication of a report of the hearing or a specified part of the hearing.

(8) Prohibition re identifying child. — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Prohibition re identifying person charged .— The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142.— (3) Offences re publication. — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)( c ) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

ONTARIO COURT OF JUSTICE

DATE: 2021 01 15 COURT FILE No.: Brampton 20108/16

BETWEEN:

THE CHILDREN’S AID SOCIETY OF PEEL Applicant,

— AND —

P.D. and K.D. Respondents

Before Justice Philip J. Clay

Costs submissions received December 31, 2020 Reasons for Costs Decision released on January 15, 2021

Counsel: Ms. G. Williams......................................................................... counsel for the applicant society Mr. L. Levine........................................................................... counsel for the respondent father P.D..................................................................................................................... on her own behalf Ms. M. Leonard................ counsel for the child through the Office of the Children’s Lawyer

CLAY J.:

COSTS

OVERVIEW

[1] The matter before the court was the society's three times amended Child Protection Application which sought a child protection finding that the child S.D-D born […], 2011 was likely to suffer emotional harm demonstrated by certain behaviours resulting from the actions, failure to act or a pattern of neglect on the part of the child's parent. The child was in the primary care of the mother since birth and the Society's concerns regarding emotional harm relate only to the mother. The Society had no protection concerns regarding the father. The society sought an order that the father be granted custody of the child. The Office of the Children's Lawyer ("OCL") and the father supported the society's position. The mother sought a dismissal of the Application and the return of the child to her care.

[2] The parties lived together from their marriage in March 2011 to November 2012 although during that period they were separated for a few months in the summer of 2012. Their only child was born on […], 2011. At the time of the parties' separation the mother moved out of the party's basement apartment with the child. They were unable to arrange access and the father brought an Application. A section 112 report from the Office of the Children’s Lawyer (OCL) was completed on May 29, 2015. The parties with the assistance of counsel and based upon the recommendations in the OCL report ultimately entered into Minutes of Settlement that became the order of Justice S.V. Khemani dated January 28, 2016 which granted custody of the child to the mother. On February 25, 2016 the father was granted overnight alternate weekend access. This custodial arrangement was still in place when the Peel Children's Aid Society (PCAS) became further involved and remained in place until November 26, 2019 when the child was placed into the custody of the father, in the course of this child protection proceeding.

[3] The society had a brief opening of a file in June 2014 when the mother suspected that the father might have sexually interfered with his daughter during access. The child was seen at The Hospital for Sick Children's Suspected Abuse and Neglect team ("SCAN") and there was no physical evidence of abuse.

[4] Most of the critical evidence in this matter occurred in the period July 2016 to January 2017 when there were a number of investigations of possible sexual abuse of the child by the father. There was never any physical evidence of abuse, but that of course did not necessarily mean that abuse did not occur. The investigations focused on the statements made by the child when she was only 4.5 years old.

[5] The mother only directly contacted the Society in July 2016 as other third parties called the society on the other occasions. However, as will be noted in the evidence set out below, it was the Society's theory that the mother's actions directly led to the child's statements. The child was interviewed by professionals on a number of occasions. The mother's position at trial was that no one was listening to her child which led to the child being repeatedly sexually abused by her father. The father denied all allegations of abuse.

[6] The society relied on reports from the investigators which addressed the statements, the context to the statements and the inconsistency and ultimately the credibility of the statements. The Society concluded that the child would continue to be pressured into making negative statements about the father and that the mother would continue to ensure that further investigations were done until the police and/or the Society, took action. The mother was convinced that there was historic and ongoing abuse and that this abuse was being ignored by the very people she felt should do something to stop it.

[7] It should be noted that based upon the conclusions of a hybrid parenting capacity /psychological assessment of the parents completed by a psychiatrist, the society was of the view that the mother had a personality disorder that caused her to believe that her daughter was being harmed even when there was no credible evidence that anything was happening. The child has lived in the temporary care of the father since November 26, 2019 and there have been no concerns seen by, or reported to the Society, and that is why they are proposing a final custody order in his favour.

TRIAL ORDER

[8] After a 15-day trial, I made an order on November 26, 2020 that found the child to be in need of protection due to emotional harm, and the likelihood of further emotional harm, caused by the mother. I made a final order granting custody of the child to the father and provided that the mother would have access to the child in the discretion of the father.

[9] The final order provided for costs submissions as follows;

(a) If the Society or the OCL are seeking costs as against P.D. by December 11/20 they shall serve and file a costs submission which shall included references to relevant case law on costs to the Society and OCL respectively. They shall attach a bill of costs.

(b) K.D. may file a costs submission by December 18/20 which shall include references to relevant case law on the issue of costs by one respondent against another in a child protection proceeding. He shall attach a bill of costs.

(c) If costs are sought by any party P.D. shall file her responding submission by December 31/20.

(d) All costs submissions are limited to 5 pages double spaced not including the bill of costs and an appendix of cases.

[10] Neither the society nor the OCL sought costs. The father filed a costs submission and the mother filed a response to costs submission. As directed, the father filed a brief of authorities that addressed the issue of costs in child protection cases.

THE LAW

[11] Costs are addressed in Rule 24 of the Family Law Rules. The sub-sections relevant to this matter are set out below;

SUCCESSFUL PARTY PRESUMED ENTITLED TO COSTS

24. (1) There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. O. Reg. 114/99, r. 24 (1) .

NO PRESUMPTION IN CHILD PROTECTION CASE OR IF PARTY IS GOVERNMENT AGENCY

(2) The presumption does not apply in a child protection case or to a party that is a government agency. O. Reg. 114/99, r. 24 (2) ; O. Reg. 544/99, s. 10 (1).

DECISION ON REASONABLENESS

(5) In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,

(a) the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;

BAD FAITH

(8) If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately. O. Reg. 114/99, r. 24 (8) .

SETTING COSTS AMOUNTS

(12) In setting the amount of costs, the court shall consider,

(a) the reasonableness and proportionality of each of the following factors as it relates to the importance and complexity of the issues:

(i) each party’s behaviour,

(ii) the time spent by each party,

(iii) any written offers to settle, including offers that do not meet the requirements of rule 18,

(iv) any legal fees, including the number of lawyers and their rates,

(v) any expert witness fees, including the number of experts and their rates,

(vi) any other expenses properly paid or payable; and

(b) any other relevant matter. O. Reg. 298/18, s. 14.

[12] This matter proceeded as a child protection proceeding. The successful party was the society in that it obtained all of the relief that it sought. Neither the Society nor the OCL sought costs. The father adopted the society’s position but did not have carriage of the proceeding. The father seeks costs against the mother. I will begin by reviewing the law with respect to such claims.

[13] In Children's Aid Society of Simcoe County v. C.S., [2006] OJ.No.871 Justice Olah was asked to award costs to a mother for a contempt motion brought within the context of the main children proceeding. The father had taken the daughter from the care of the Society and retained her in contravention of a court order. Justice Olah stated that;

The issues with respect to costs are:

1. Can costs be awarded against a parent in a protection hearing?
2. Can costs be awarded in favour of the mother, a defendant party, if the CAS, the moving party, does not seek costs?
3. Can costs be awarded against a parent in a protection hearing?

[14] These are the same issues that are before me with the exception that in this case it is the father who is seeking costs against the mother in a protection hearing. I will, therefore, use the same analytical structure and then note the factual differences in the case before Justice Olah and the case before me. Justice Olah wrote;

Can costs be awarded against a parent in a protection hearing?

3 The law regarding costs in family matters is set out in Rule 24 of the Family Law Rules. Rule 24(1) creates a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal while Rule 24(2) removes that presumption in a child protection case.

4 The respondent father in this case could be considered to have been unsuccessful on the motion as the order sought against him was granted, although due to the operation of the Family Law Rule 24(2), his lack of success does not, on its face, lead to a presumption of liability for costs.

The nature of protection hearings supports the removal of the presumption. Whitten J. of the Divisional Court stated as an aside that "it is difficult to think of a party in a protection hearing as being successful or "winning" as possibly exists in civil contexts, it is more a matter of being the recipient of a decision or judgment in one's favour" (Children's Aid Society of Hamilton-Wentworth v. S.R. (2003). 42 R.F.L. (5th) This is likely less true, however, on a contempt motion than in the main proceedings of a child protection case, since the contempt order is a judgment on and prohibition of the behaviour of the party. In addition, the contempt proceedings do not make direct findings concerning the protection of the child, but are intended to enforce a previously made order.

6 In Children's Aid Society of Niagara Region v. K.(K.), 2003 I OJ. No. 1759, 2003 CarswellOnt 1673 (Ont.S.CJ.) , Bain J. addressed the procedure in determining costs on an application for leave to appeal an unsuccessful application on the part of foster parents to be added as parties in child protection proceedings. The factors identified in awarding costs against the foster parents were:

1. this was not the main child protection proceeding;
2. the success of the respondents in both instances;
3. the complexity of the proceeding;
4. some suspicion as to the motives of the foster parents in their timing of the application.

7 Accordingly, this contempt order, made in the context of an ongoing protection matter (not the main child protection proceeding), where the unsuccessful party actively participated in a child's absence from the care of the society for a period of in excess of 12 weeks and where the unsuccessful party engaged the involvement of his two sons, one a minor, in a continued breach of a court order, is one of those rare cases where costs may be awarded.

[15] Justice Olah found that costs can be awarded against a respondent parent, but the examples cited do not include costs for a lack of success in the entire child protection proceeding. Justice Olah then moved on to the second issue which I have reframed (in italics) to make it more generic.

Can costs be awarded in favour of a parent , a defendant party, if the CAS, who was the moving party, does not seek costs?

In Re S.(D.) (2003), 170 O.A.C. 344, 39 R.F.L (5th) 209 the Divisional Court dealt with the issue of whether costs could be ordered in favour of one parent against the other in child protection proceedings where the CAS has not asked for and was not being asked for costs.

In that case, as in the case at hand, the respondent father adopted the position of the CAS and the CAS was successful. The court stated in paragraphs 3-7 as follows:

The rationale for making child protection cases an exception to the presumptive entitlement to costs stem from the fact that a children's aid society has a statutory obligation to initiate and pursue proceedings if there is a reason to believe a child is in need of protection and it should not be dissuaded from the pursuit of its statutory mandate by costs considerations. Parents, on the other hand, are generally insulated from claims for costs in such proceedings because when faced with state intervention in the care and upbringing of their children, they have a right to force the state to prove its case and should not be penalized in costs. See Children's Aid Society of Ottawa-Carleton v. V. (2001), 105 A.C.W.S. (3d) 885 , /20011 O.J. No. 2147 (Ont.S.CJ.).

In this case, the costs issue is not as between the children's aid society and a parent, but rather as between the two parents. Subrule 24(2) certainly shields the father from any costs which might be claimed by the society. The issue is whether it necessarily shields him from responsibility for the mother's costs. As between the father and the mother, the mother was "successful" because she supported the disposition of the trial judge which was upheld.

However, the wording of subrule 24(2) is clear and unequivocal. The presumptive entitlement to costs "does not apply in a child protection case". The mother is not presumptively entitled to costs. There may be appropriate cases for costs awards as between the parents in a child protection case, but entitlement must be based on something more than merely the outcome of the case.

In this case, the father's appeal raised genuine issues and was not devoid of merit, nor did he behave unreasonably in his capacity as a litigant on the appeal.

No order as to costs.

[16] Justice Olah referred to Re : S.(D.) and found that the claim for costs in the contempt motion should be allowed. She wrote at paragraphs 9;

9. This ruling indicates that for one parent to collect costs against the other in a child protection case, there must be some degree of unreasonableness or meritless argument, or some other exceptional element present. The fact the motion before me dealt with the father's breach of a court order concerning the child distinguishes the case at hand from those where it was deemed inappropriate to order costs.

[17] In her assessment of costs Justice Olah only ordered costs directly related to the contempt motion.

[18] The father also relied upon Children's Aid Society of Ottawa v. K., [2005] O.J. No. 2573 . This is another case of a court being asked to order costs on a custody and access motion argued within the context of a child protection matter. Justice Linhares de Sousa found that;

This Court clearly has jurisdiction to consider a costs award not only on the motion, but also on the whole of the child protection proceedings as between the two parents.

[19] There were some similarities to the case before Justice Linhares de Sousa and the case that was before me. In the case before me, the mother’s completely uncooperative behaviour and attitude towards the Society caused the latter at one point to ask the court to terminate the child protection proceedings so that the matter could proceed as a custody/access trial with the use of the hybrid parenting capacity assessment/psychological assessment. Quite correctly the Society quickly changed their position and did proceed to trial to seek a child protection finding based upon emotional harm. In Children's Aid Society of Ottawa v. K. the matter proceeded differently. Justice Linhares de Sousa wrote;

There is no question that Mr. P. has been substantially successful on the motion issues. Shortly after my endorsement of April 13, 2005, the Children's Aid Society of Ottawa withdrew its protection application for reasons stated on the record. The matter is now proceeding as a family law proceeding rather than a child protection case. The Society's withdrawal of its protection application was consistent with Ms. K.'s position in the child protection matter as stated by her in her submissions. However, it was clear from the evidence that the reasons for the Society's withdrawal from the case had much to do with Ms. K.'s aggressive, negative and uncooperative attitude towards the Society's efforts to assist this family. Particularly problematic to the Society's constructive working with this family was Ms. K.'s continual attempts to undermine the Society's involvement in the eyes of the children.

[20] It is clear from the decision that there was a motion within the child protection proceeding the result of which was that the matter continued as a family law proceeding. The costs sought though were costs sought by one parent against another in a child protection proceeding. However, as was the case in Children's Aid Society of Simcoe County v. C.S. ( supra.) the costs sought were for a motion not the entire child protection proceeding itself.

[21] In Children's Aid Society of Ottawa v. K. the court looked to the behaviour of the unsuccessful party. Justice Linhares de Sousa stated;

Ms. K., in the intensity of her conflict with her husband, has consistently conducted herself throughout the child protection proceedings in an un-cooperative and obstructionist manner. She has been disrespectful of court orders and has disregarded them if she has not agreed with them. Her behaviour has necessitated the bringing of court proceedings and has prolonged them. More importantly and seriously, she has actively involved her children in the parties' matrimonial conflict and continues to do so. She continues to have very little insight into her own conduct, which can only be described as unreasonable and if not in bad faith certainly bordering on it.

[22] All of these comments apply to the litigation behaviour of P.D. in the case before me. I need not set out the behaviour in detail in these reasons as it was addressed in my written reasons for decision. There is no doubt that the trial itself was unnecessarily lengthened by P.D.’s obsessive efforts to illustrate minor differences between testimony given by society workers and other witnesses’ and their notes taken at the time. In general, her efforts were unsuccessful and the witnesses’ she called did not advance her case.

[23] Ultimately, Justice Linhares de Sousa found that the mother’s behaviour justified some contribution to the father’s costs in the child protection proceedings.

[24] The final child protection case relied upon by the father was Children and Family Services for York Region v. A.S., 2010 ONSC 1287, [2010] O.J. No. 872 A.S. In this case, Justice H. McGee was asked to make a costs order in favour of one parent against the other parent. She noted;

16. Parents in a protection proceeding are not ordinary litigants. They are co-respondents, defending a claim brought by an applicant society that is state funded with a statutory mandate to protect children. Child protection societies exercise their discretion independent of the interests of the parents. At certain stages of a proceeding a parent's interests may align with those of the society, or the information of one parent may be preferred over another's in determining a plan of care for children, but at no time does a society act on behalf of a parent.

17. In my view, costs as between parents in a protection proceeding ought not to have a different treatment. The subject matter of the application, the governing statute and the jurisprudence all speak to the same overriding purpose: the care and protection of children. The fear of a costs sanction ought not impede a vigorous presentation of any participant's case provided that one is acting in good faith, and in a manner not excessively unreasonable or disproportionate to the issues involved . The legislature has specifically recognized this approach by eliminating the presumptive entitlement to costs to any successful party.

Summary of the law

[25] It is clear that costs can be awarded to one parent against the other parent in a child protection proceeding. It is also clear that there is no presumption in favour of costs to a parent who has more been more successful in the proceeding.

[26] For costs to be awarded in a child protection proceeding there “must be some degree of unreasonableness or meritless argument , or some other exceptional element present.”

[27] While at least two cases have noted that one of the reasons for granting costs was that the costs sought were in the context of a motion within a child protection proceeding and not costs for the entire proceeding itself in the A.S. case costs were considered against a parent for the entire proceeding. However, A.S. confirmed the principle that costs against litigants in child protection proceedings must be looked at differently than costs in a family proceeding. As Justice McGee noted “The fear of a costs sanction ought not impede a vigorous presentation of any participant's case provided that one is acting in good faith, and in a manner not excessively unreasonable or disproportionate to the issues involved.”

ANALYSIS

Review of law and analytical approach

[28] Justice McGee’s approach to costs in the Children and Family Services for York Region v. A.S. case is most instructive to the analysis that needs to be undertaken to decide the costs issue in this matter. She was tasked with deciding a costs claim for an entire child protection trial and there were similarities in the facts in A.S. to the facts in the matter before me.

[29] Justice McGee divided the analysis of the costs claim before her into two distinct periods. In the first period there were child protection claims against both parents. The evidence established that the mother instigated all allegations against the father and tried to enlist the society as her ally in taking steps to limit the father’s involvement with the children.

[30] Justice McGee found that the second period to be analyzed in her case began when the society amended their application to strike the grounds of physical harm and the risk of physical harm by the father. A finding that the children were in need of protection was sought only on the basis that the children had suffered, and were at risk of continuing to suffer, emotional harm while in the care of their mother.

[31] The facts in the A.S. case are similar to the facts in the case before me with one significant exception. In the case before me, the society initially investigated physical harm against the father, but within three months they had determined that there was no credible evidence that it had occurred. When the application was brought it was based upon a risk of emotional harm caused by a high degree of parental conflict. Over time, that conflict was seen to be caused solely by the mother, and as noted above, the society tried to convert the matter to a family law proceeding before finally issuing a three times amended application seeking a finding of emotional harm against the mother only.

[32] The disposition sought in A.S. was the placement of the children in the care and custody of the society for a period of two months, followed by placement of the children with their father, subject to the supervision of the society for a period of six months. In the alternative to a period of wardship, the society sought an order under section 57.1 of the then applicable Child and Family Services Act directly placing the two children in the sole and final custody of the father.

[33] As noted, in the case before me the by the time of trial the child had already been living with the father for nearly a year so the disposition sought was a custody order in favour of the father under s. 102 of the Child, Youth and Family Services Act.

[34] Justice McGee made similar findings of fact with respect to the mother in A.S. that I found with respect to the mother in the case before me. She wrote;

41 Within my reasons I found that the mother's conduct throughout was based on a rigid and false belief system, clinically evaluated as a cognitive distortion . Acting on that belief system, when she was unsuccessful in directly eliminating the father's role in the children's lives, she sought to do so through various allies, the society and the criminal courts. If a professional person did not agree with the mother, such as an access supervisor, a parenting coordinator or a society family services worker, the mother discharged him or her, or made a complaint to remove the person.

42 The extensive expert evidence presented at trial provided a therapeutic construct for understanding the mother's conduct, and the range of clinical interventions available to assist her and the children . It does not in any manner suggest that she was under a disability or unable to appreciate the effect and consequence of her actions. In other words, the clinical evidence does not excuse her conduct from the legal sanction of an award of costs. The mother was strategic and deliberate in her efforts to remove the father from her children's lives, and at the same time appear compliant with the direction of the society and the court.

43 Modern cost rules reflect a variety of purposes such as indemnifying a party from the costs of litigation, controlling conduct by discouraging frivolous suits or unmeritorious defences, and promoting and encouraging settlement: Fong v. Chan (1999), O.J. No. 4600 (Ont. C.A.). The mother's conduct during the first period invites an award of costs on all three analyses.

44 My November 12, 2009 reasons set out a more fulsome treatment of the period from September 13, 2007 to April 30, 2009. In this costs endorsement, I have provided but a brief summary of events to demonstrate that the mother's conduct during this first period was not that of a parent defending a society's application, but of a party wilfully seeking to bring government and community resources to bear on her former spouse, for her own purposes.

45 If I am wrong in this, then the mother's conduct can only be explained as a fundamental lack of appreciation for the role of the society. Mother pursued their services in the belief that they would become an ally in the termination of the father's involvement with the children. When the society exercised its mandate to provide the children with safe, supervised and appropriate visits with their father, the mother directly and indirectly resisted those visits. The mother's conduct was so long standing and tenacious that over time it left the society with no option but to seek to remove the children from her care.

[35] The mother’s in both cases denied their child(ren) an opportunity for a positive relationship with their father. In the A.S. case Justice McGee accepted that the mother had a “cognitive distortion”. She also found that the therapeutic construct;

… does not in any manner suggest that she was under a disability or unable to appreciate the effect and consequence of her actions. In other words, the clinical evidence does not excuse her conduct from the legal sanction of an award of costs.

[36] Justice McGee then reviewed the law on bad faith and wrote at paras. 47-48;

47. C.S v. M.S. (2007) 157 A.C.W.S. (3 d) 923, /2007 / OJ. No. 2164 (S.CJ.) offers a comprehensive treatment of bad faith within a costs claim. Perkins J. reviewed the law, inclusive of the definition of "bad faith" in The Concise Oxford Dictionary of Current English (5th ed., 1964, ed. by H.W. Fowler and F.G. Fowler,) concluding that:

Bad faith is not just "intent to deceive." In order to come within the meaning of bad faith in subrule 24(8) , behaviour must be shown to be carried out with intent to inflict financial or emotional harm on the other party or other persons affected by the behaviour, to conceal information relevant to the issues or to deceive the other party or the court. A misguided but genuine intent to achieve the ostensible goal of the activity, without proof of intent to inflict harm, to conceal relevant information or to deceive, saves the activity from being found to be in bad faith. The requisite intent to harm, conceal or deceive does not have to be the person's sole or primary intent, but rather only a significant part of the person's intent. At some point, a party could be found to be acting in bad faith when their litigation conduct has run the costs up so high that they must be taken to know their behaviour is causing the other party major financial harm without justification.

48 I find that the mother's course of conduct during the first period constitutes bad faith within the meaning of Rule 24(8) and as set out in C.S. v. M.S., supra . It is neither appropriate with regard to the factors set out in Fong v. Chan, supra , nor just in consideration of Rule 2 of the Family Law Rules, supra that the father wholly bear his costs in this matter. The father shall have an award of costs.

[37] Based upon this finding of bad faith during the first period analyzed Justice McGee ordered full recovery costs in the amount of $160,000.

[38] Justice McGee then looked to the second period and she stated at paragraphs 62-65:

62 The second period was one in which the society sought to remove the children from the mother's care. It coincides with an escalation in the father's legal fees as he prepared for trial, first scheduled for May of 2009, and then August 4, 2009. During this period, the father's interests aligned with that of the society. By the conclusion of trial, the father's plan had matured to the extent that it became a joint submission with the society, and the Children's Lawyer.

63 I do not find that the mother acted in bad faith during this second period. Once the society amended its application to seek a finding that the children had been emotionally harmed, or were at risk of being emotionally harmed by the mother, the mother was no longer an ordinary litigant. Although her position at trial continued from that presented during the first period - that the father posed a risk to the children - it was no longer open to the court to so find.

64 Upon the April 30, 2009 amendment of the application, the mother was entitled to the considerable latitude normally afforded to participants in child protection proceedings. Thus, I do not find that her insistence on calling and fully examining all society witnesses (whose evidence father's counsel had consented to receive by affidavit) was unreasonable…

65 I do find that it was unreasonable per Rule 24(11) that during the second period, the mother continued to resist unsupervised access. Her counsel's opening position was consistent with her evidence in chief: that she believed that the father had harmed the children and would continue to do so if given the opportunity. This position was taken despite the October 7, 2008 report of the jointly retained assessor …

[39] Justice McGee found that it was not bad faith for the mother to vigorously defend a child protection application that was solely focused upon a finding that she had caused the children emotional harm. She did though find that the mother acted unreasonably and thereby significantly increased the father’s costs. At paragraph 72 she wrote;

72 I find that the mother's position at trial was unreasonable. She disregarded the expert testimony; called witnesses who were neither aware that there was a protection proceeding, nor that they were testifying within it; and continued to seek a finding that "the father had harmed the children/were a threat to the children", all within an application which sought a finding that the children were in need of protection as a result of her own conduct and with a requested disposition that they be removed from her care.

Application of the law to the facts in this case

[40] As noted above there are remarkable similarities between the facts in this case and the facts in A.S. There are also some differences.

[41] In this matter, the father sought costs only for the preparation for, and attendance at, the child protection trial in which the claim before the court was for a child protection finding that the mother had caused the child emotional harm. In this respect the costs sought could be seen to be comparable to the costs sought in the second period of the A.S. case.

[42] In my reasons for the trial decision I divided the evidence into four periods of time. The first two periods involved the initial investigations of physical and sexual abuse that I found were instigated by the mother, but for which there was no evidence of wrongdoing by the father. The first protection application sought a finding against both parents based upon a risk of emotional harm caused by severe parental conflict.

[43] The third period began with the decision to order a hybrid assessment and the steps taken after that assessment was released. Those steps included the quickly withdrawn amendment to terminate child protection proceedings, the application for a child protection finding based upon emotional harm caused by the mother only and the temporary order transferring custody of the child to the father. The final period was the evidence that arose after the custody transfer.

[44] The facts in the first two periods were similar to the facts in the first period in the A.S. case. They involved a mother, with a possible mental health or personality disorder, who was convinced that the father was abusing his child(ren) and who attempted to enlist the assistance of the society and other organizations-in my case the police and the health care system- to deny the father contact with the child.

[45] In both cases, the claim before the court changed over time. In A.S. the first child protection claim was focused solely on the father and was shown to be without merit which lead to the second child protection claim which was focused solely on the mother. In the case before me the first claim was against both parents for emotional harm, but when it was clear that there was no evidence against the father the claim before the court was solely against the mother.

Degree of unreasonableness or meritless argument

[46] In order for a costs order to be made in a child protection case there must be a degree of unreasonableness in the position of the parent defending the costs claim. There is ample evidence of the unreasonable positions taken by the mother in this case.

[47] The mother persisted in taking her young daughter for numerous investigations by the police, the health care system, and the society. She refused to accept any conclusion or opinion with which she did not agree. She had a fixed belief that her daughter was being abused by the father and no evidence, or absence of evidence, could persuade her otherwise. She attacked anyone who did not support her position. She put her own need to prove child abuse ahead of the needs of her child for a positive and loving relationship with her father.

[48] In the conduct of the litigation the mother acted unreasonably. She was certainly entitled to mount a vigorous defence against the claim that she had, and continued to, emotionally harm her child. It was apparent from her position at trial though that the mother essentially ignored the society’s claim that her actions or behaviours could cause harm and focused entirely upon what she saw as the father’s abuse and the failure of all of the institutions involved to protect her daughter from him. She did not concede anything that did not fit her preconceived ideas about what had happened, and what would continue to happen, if the child was not removed from the father’s care immediately.

[49] The mother’s trial position was very similar to the trial position of the mother in A.S. described by Justice McGee in paragraph 72 of her reasons supra. The mother did more than exercise her right to vigorously defend herself from the society’s allegations. She acted unreasonably.

[50] I find that due to the way the mother conducted herself in this proceeding the father is entitled to costs.

Bad faith

[51] Sub-rule 24 (8) of the Family Law Rules provides that if the unsuccessful party acts in bad faith the other party is entitled to full recovery costs.

[52] I have already found that the mother’s behaviour in this matter was similar to the behaviour reported in what Justice McGee described as the first period of the A.S. case. I found in my reasons for the trial decision that the mother went to extraordinary lengths to have her child examined and interviewed all in an effort to try to persuade the society that the child had been abused by the father.

[53] The case was complicated by the fact that the 4 year old child did make many disclosures of alleged abuse. She also retracted statements and never acted in a way that was consistent with her horrific statements. There was never any physical evidence that corroborated any of her negative statements about her father. I accepted the evidence of the professionals involved and concluded that the mother’s actions or behaviour caused the child to make the statements.

[54] I accept the legal definition of bad faith for the purposes of s. 24 (8) of the Rules as set out by Justice C. Perkins in C.S v. M.S. (supra). The issue is the mother’s motivation. To be bad faith;

The behaviour must be shown to be carried out with intent to inflict financial or emotional harm on the other party or other persons affected by the behaviour …

[55] Justice Perkins qualified the intent necessary by adding;

The requisite intent to harm, conceal or deceive does not have to be the person's sole or primary intent, but rather only a significant part of the person's intent. At some point, a party could be found to be acting in bad faith when their litigation conduct has run the costs up so high that they must be taken to know their behaviour is causing the other party major financial harm without justification.

[56] The mother’s behaviour certainly caused the father emotional and financial harm. The mother would have been aware of this. I find, on the evidence though, that this was not the mother’s primary intent.

[57] The child protection issues surfaced in the summer of 2016. At the time the child was in the care of the mother pursuant to a final custody order with alternate weekend access to the father. The father was required to pay child support pursuant to a temporary order. The matter was proceeding towards a trial in which the mother was seeking to impute an increased income to the father with a goal of obtaining a higher child support order. There was no rational reason for the mother to make allegations against the father with the exception of the fact that a criminal charge or protection finding could eliminate his unsupervised access.

[58] I am not convinced that causing the father emotional and financial harm was even a significant part of the mother’s intent. The mother is an intelligent woman and with the major exception of her views towards the father’s role with the child she is in every other respect a highly functioning and very competent person. The mother is a self-employed mortgage broker and by her own evidence she manages “thousands” of files. I found that she loved her daughter very much, focused on her education and provided an enriched environment for her.

[59] The mother was aware that she was causing the father emotional harm, but due to her fixed belief that the father was abusing her child she did not give a thought to his feelings or the impact upon him of numerous allegations and investigations.

[60] She knew that the father must be incurring significant legal costs. The mother was unrepresented at trial, but she made it clear on a number of occasions that she was receiving a lawyer’s advice throughout the trial proceeding. She had retained at least two lawyers earlier in the proceeding so she would be well aware of the financial cost of litigation. She works in a financial field. I noted in my reasons for decision that the mother was very organized and prepared, had an excellent memory and was an articulate and at times effective advocate for herself.

[61] In this matter I find that whether there was bad faith in this litigation as defined in C.S v. M.S. comes down to an examination of the mother’s motivations for her actions. I appreciate that it is often not possible to know why a person takes the steps that they do.

[62] In my reasons for decision in this matter I addressed the evidence of the psychiatrist who completed a hybrid parenting capacity/psychological assessment. At paragraphs 253 and 254, I wrote;

253. Dr. Wittenberg commented on the mother's background and difficulties in life. He then said;

My impression of mother is someone who has had great difficulty in relationships. It is not clear to me what are her internal thought processes that lead to her suspiciousness and fixed beliefs. Those do not reach a degree of failure in reality testing that would classify them as delusions and lead to a diagnosis of psychosis in her, but I would give Ms. D. a diagnosis of personality disorder (unspecified type-DSM-5).

254. In the next paragraph the assessor wrote;

I believe she has brought S. into the conflict that she has with relationships. She has no insight into her behaviour or the impact of that behaviour on her daughter. She seems convinced that father has abused S. and this does not seem changeable. I am very concerned about the impact of mother's beliefs and relationships on S.'s emotional wellbeing now and into the future.

[63] I find on the evidence that the mother’s actions were the direct result of her fixed belief that her child was being abused and everything that occurred in this litigation could be traced back to that belief.

[64] I find that the mother was quite capable of rational thought in almost all dimensions of her life but that that she had a blind spot when it came to the father’s relationship with the child. Due to this I find that it is likely that her litigation behaviour was not the result of her forming an intent to harm the father in this proceeding. Her intent was to prove to the court that her daughter was being abused. The litigation became very contentious and protracted because she was simply incapable of recognizing that her fixed belief might not be accurate.

[65] The mother might not be psychotic or delusional in the clinical sense, but I accept Dr. Wittenberg’s evidence that she has a personality disorder, and I find that the personality disorder interfered with ability to think rationally when it came to her belief that the father was abusing her daughter.

[66] I must concede that there is some evidence that supports a finding that the mother wilfully disobeyed court orders. She was clearly clever and able to manipulate the child and, at least initially, most of the people with whom she came into contact. However, I am not being asked to make a costs determination on a motion for contempt with respect to a specific act of wilful conduct.

[67] The father is asking the court to find that throughout this proceeding the mother was motivated by an intent to cause emotional and financial harm to the father. I find that the mother did not care if the father was emotionally and financially harmed and she may even have been pleased that that harm resulted.

[68] The clinical evidence and my observations of the mother throughout this lengthy trial have persuaded me that the mother’s personality disorder was the motivating factor that led to her actions during this proceeding. Despite being clearly intelligent in every other sphere of her life she embarked upon a course of action that any rational observer could see was ruinous. She had a final custody order and a secure and loving relationship with her daughter. She then took steps that led to a finding that she had emotionally abused her child such that she lost custody and now only has supervised access.

[69] I recognize that litigants without diagnosed disorders make irrational and self-defeating decisions all of the time. However, all of the evidence in this matter causes me to find that the mother’s actions were not motivated by revenge or anger towards the father but were the consequence of some fixed beliefs arising from a personality disorder. Dr. Wittenberg said that the mother’s fixed belief was so entrenched that it may never be capable of effective treatment. In these circumstances, I cannot find that the mother was motivated by bad faith. This means that the father is not entitled to full recovery costs.

[70] I have found that there shall be costs for the mother’s unreasonable behaviour but that those costs shall not be on a full recovery basis. I will now turn to the factors I must consider before setting those costs.

Factors with respect to assessing costs

[71] In assessing costs, I must look to Rule 24 (12) and consider the reasonableness and proportionality of the enumerated factors as it relates to the importance and complexity of the issues

(i) each party’s behaviour,

The father’s behaviour during this entire proceeding was exemplary. That was reflected in paragraphs 366 and 367 of my reasons for decision. I wrote;

366. Prior to making a custody order, I must determine if such an order is in the child's best interests. I have looked at the best interest’s factors set out in s. 74 (3) of the Act . Given the extensive review of the evidence above, I find that it is not necessary to separately review each factor. The father has been involved with the child throughout her entire life. He would have been far more involved had the mother not taken every step available to her to minimize his contact due to her fixed belief that he was harming S.

367 It is quite remarkable that despite all of the false allegations and the lengthy legal proceedings to which he has been subjected the father has never wavered from his view that it is in the child's best interests to see her mother and to try and develop a positive and healthy relationship with her. This willingness to share time and to allow his child to speak openly and affectionately about the mother in his presence is perhaps the best indicator that the father will act in the child's best interests. I will grant him custody.

[72] The mother’s behaviour was completely unreasonable. She disobeyed specific court orders for access and took numerous steps to impede and interfere with this court being able to address this matter on the merits in an effective and timely way. As noted above, it was only because of her fixed belief in the father’s abuse caused by a personality disorder that I found that her actions did not meet the criteria necessary to find bad faith with the consequent award full recovery costs.

(ii) the time spent by each party,

[73] It is important to recognize that this was a child protection proceeding. The society bore the burden of proof throughout. Almost all of the evidence in this 15 -day trial was directed to the issue of whether the court should make a child protection finding. In this respect the trial before me was very similar to the trial in A.S. and I completely agree with Justice McGee’s statements in paragraphs 79 and 80 of her costs judgment;

79 It was not the father's legal team that bore the burden of proof with respect to either a finding or a placement of the children. The society bore that burden and was successful in meeting the relevant tests and obtaining their preferred disposition

80 Had this been a case pursuant to either the Family Law Act, R.S.O.1990. c. F.3, or Divorce Act, R.S.C. 1985. c. 3 (2nd SupJJ.). in which a parent bore the burden of proof on a custody claim, as was the case in C.S. v. M.S., supra , my reasoning in this regard might have differed. As I mentioned on a number of occasions during the trial, this was not a family law dispute between the parents, but rather, a child protection application.

[74] From June 2018 when the society received Dr. Wittenberg’s assessment the society and the father have had the exact same position. This assessment ultimately resulted in the society amending its application in February 2019 to seek a child protection finding of emotional harm caused by the mother with a disposition of custody to the father.

[75] The OCL was appointed in August 2019 and by November 26, 2019 the OCL did not object to an order placing the child in the temporary care of the father. Well before trial the OCL fully supported the society position.

[76] The society was responsible for the preparation of all of the affidavit evidence of their witnesses. It arranged for the video evidence tendered by the police witnesses and facilitated the attendance of a forensic interviewer from Sick Kids and the assessor Dr. Wittenberg.

[77] The OCL clinical investigator prepared an affidavit and was cross-examined and Ms Leonard also called the child’s teacher. The mother gave evidence and called a few other witnesses. Mr. Levine called the father and prepared an affidavit for his one other witness. That witness was the father’s friend and she was cross-examined for a couple of hours.

[78] The father’s claim was for full recovery costs of $109,530 inclusive of disbursements. The claim began in December 2019 with the first conference to schedule this matter for the trial that began on August 28, 2020.

[79] There is no doubt that both parents were entitled to counsel throughout this proceeding. It is unfortunate that by the time of trial the mother no longer had counsel although she had access to a lawyer during the trial period. What I am required to consider is the reasonable amount of preparation time that should be allowed to form the basis for a costs claim as against the mother by the father.

[80] I find that as the society had carriage of this proceeding and bore the onus of proof on each and every issue that the time spent by the father’s lawyer must be looked at in that context. Mr. Levine was only required to prepare the father and his one witness. He did need to prepare to cross-examine other witnesses, but he did not bear the primary responsibility for cross-examination.

[81] As the father’s position was identical to the society and OCL positions the scope for cross-examination of their witnesses was very restricted. It is no criticism of Mr. Levine to state that he did not have to ask many questions to clarify or add to the evidence as both Ms. Williams and Ms. Leonard prepared their witnesses well.

[82] The primary responsibility for cross-examination of the mother on the child protection issues fell to Ms. Williams for the society. I accept that Mr. Levine needed to address the many negative statements that the mother made about the father that related to the disposition issue.

[83] It is very difficult, if not impossible, to parse the time spent in anything other than a somewhat arbitrary manner. I find that that the father should have his costs for his counsel being required to prepare for and be present for a lengthy trial, but for the reasons stated I will reduce the amount of preparation time based upon the fact that the father was almost completely reliant on the society’s preparation and the society’s evidence.

(iii) any written offers to settle

[84] As might be expected for a trial on these issues there were no offers to settle to consider.

(iv) any legal fees, including the number of lawyers and their rates,

[85] The father’s counsel Mr. Levine was called to the bar in 1975. His regular hourly rate of $550 per hour may well be reasonable for a senior litigator in the GTA. Mr. Levine set out a partial indemnity rate of $450 per hour with a counsel fee for this 15-day trial in the amount of $60,000.

[86] Mr. Levine sought costs for his junior associate Mr. Lefkowitz at a partial indemnity rate of $100 per hour when he was still a student at law and at the rate of $250 per hour after his June 2020 call to the bar. Quite appropriately Mr. Levine did not charge a counsel fee for his associate at trial.

[87] I did note that Mr. Levine had either Mr. Lefkowitz or a student at law, and sometimes both, with him throughout the trial. I also noted that his associate or law student were very helpful to him in recording evidence and finding exhibits. Mr. Levine did not use a computer himself and was dependent upon their assistance. I note that the mother had no difficulty dealing with hundreds of pages of evidence including audio and video evidence by computer. I note this not to criticize senior counsel but to point out that the mother, who often referred to her disadvantages as a self-represented litigant, was quite capable of managing the voluminous evidence in this matter.

[88] The bill of costs submitted broke down the partial indemnity preparation time between Mr. Levine (20 hours at $450 per hour) Mr. Lefkowitz as a student (30 hours at $100 per hour) and Mr. Lefkowitz after he was called to the bar (10 hours at $250 per hour). This amounted to a total claim of $14,500.

[89] I find that the 60 hours of preparation time should be reduced to 30 hours. The costs sought are all for a period of time after the matter was set for trial, so all of the pleadings were completed, and Mr. Levine needed to prepare only one trial affidavit.

[90] I find that the hourly rate needs to be substantially reduced for the partial indemnity costs that will be awarded. This was not a complex legal case. Due to the nature of the mother’s personality disorder though the documentary evidence was voluminous, and the trial time was extended. This matter simply required competent counsel with child protection trial experience.

[91] Once again, I look for guidance to Justice McGee’s decision in A.S. She stated at paragraph 78 of her costs decision;

78 I fully appreciate that all of the father's legal team during the trial, which included a lawyer and law clerk not included in the first period, were engaged in the preparation of document briefs, preparation of cross examination, issues that arose during trial and the marshalling of their own case. I also appreciate that when both senior and junior counsel were present at trial they each charged a reduced rate, rather than their ordinary rates. Nonetheless, I find that the amount charged over the second period was not proportionate to the issues to be determined within the father's case.

[92] Justice McGee went on to comment that while the father was entitled to the counsel of his choice that, in addition to fees that were proportionate to the issues the fees incurred must also take into consideration what is reasonable for counsel to charge in the jurisdiction in which the trial is held.

[93] I find that a reasonable hourly rate for an experienced child protection counsel might be $400 per hour at a full recovery rate. I find that a corresponding partial indemnity rate would be $275 per hour for Mr. Levine, an experienced counsel. I find that Mr. Lefkowitz, a new call lawyer, shall have an hourly rate of $150 per hour for preparation. Mr. Lefkowitz shall be assigned 20 hours of the 30 hours preparation time for a total of $3,000 and Mr. Levine 10 hours of that time for a total of $2,750. The total preparation time is set at $5,750.

[94] Mr. Levine sought a counsel fee of $5,000 a day on a substantial indemnity basis and $4,000 per day on a partial indemnity basis. In order to have this matter concluded during the trial sittings available I put some time limits on the evidence and scheduled longer days than usual. The court sat from 9:30 to 4:30 most days, to 3:45 p.m. on days when the mother had access. I will allow 7 hours of trial time per day, but I will not permit the travel time sought by Mr. Levine. I will set the daily counsel fee at $1,925 per day ($275 x 7). This amounts to a total of $28,875.

(v) any expert witness fees

[95] The father was not responsible for any of the costs of the expert witnesses called.

(vi) any other expenses properly paid or payable; and

[96] The bill of costs sought $5,005.74 for disbursements and other expense. I will deduct the $3,750 sought for counsel’s travel expenses from his Toronto home and allow all of the other disbursements incurred. This leaves a net disbursement total of $1,255.74.

Summary

[97] In consideration of the Rule 24(12) factors, and in exercising my overall discretion with regard to costs incurred, I find that it is fair and reasonable that the mother ought to pay costs to the father in the amount of $34,625 in fees and $1,255.74 in disbursements for a total of $35,880.74. This amount shall be payable forthwith.

FINAL ORDER

[98] The Respondent P.D. shall pay to the Respondent K.D. her costs in the amount of $35,880.74 payable forthwith.

Dated: January 15, 2021

Justice Philip J. Clay